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In the autumn of last year, a new legal presumption was introduced: that when a couple separates the involvement of both parents in the life of their children will further the children’s welfare, provided there are no safety concerns. “Involvement” in this context means involvement of some kind, either direct or indirect, but not any particular division of a child’s time. The change was brought about by the coming into force of section 11 of the Children and Families Act 2014. We have written about this change before, so have a look at our previous blog if you’d like to know more about it.

The presumption does not mean that judges will assume that in all cases a child’s time should be split equally between his or her parents. ‘Involvement’ does not amount to equal division of time.

An interesting, and somewhat unusual case has looked at the question of equal division of time, as well as how to deal with conditions being attached to child arrangements orders. The case is called M (A Child) and was an appeal from a decision of a judge sitting in the Principal Registry (now the Central Family Court) in London.

The couple had married overseas but lived in London. The father has three older children from a previous marriage, who all lived with the father, the mother and the couple’s son together (aged 5 ½) in London. When the marriage broke down, the mother and little boy moved to stay with a relative in Newcastle, where they had been for some time when the matter came to court. The father wanted the boy to live with him and his other children in London. He could not move to Newcastle to be nearer to his son. Accordingly, the decision for the court was whether the boy should live with his mother in Newcastle or with his father in London.

The judge found that the father had been very controlling and parsimonious, including not disclosing to the mother that he was HIV positive, and that the atmosphere in the home had been very unpleasant. Despite this she made an order that the boy would live with father in London and see his mother every other weekend (undertaking some very long train journeys); but if the mother moved to London, then the child’s time would then be divided 50-50 between his parents.

The mother had nowhere to live in London. Her case was that she would have to stay in a refuge with the child if she did move back to where the child could be closer to his father – her relative offering accommodation was in Newcastle. The mother appealed the order. She said that the decision to split the child’s time equally was perverse, especially given the findings the judge had made about the father, and that she could not easily move back to London. In any event, her case in legal terms was that the judge had in effect attached a condition – that she move back to London – to an order dealing with where a child should live, which should not be done other than in truly exceptional circumstances. These circumstances did not fit the legal context for such an unusual order.

The Court of Appeal agreed with the mother and overturned the judge’s order. It confirmed that a court should not normally impose a geographical condition on a parent – so if a judge decides a child is to live with one parent, that should be the end of it. A condition prescribing where that parent will live within this country, and with whom, will generally amount to an unwarranted imposition. In this case the judge should simply have decided whether the child should continue to live with his mother, or be returned to his father’s home. A condition which had the effect of compelling the mother to move to London was unacceptable.

The Court of Appeal also discussed the concept of equal time with a child, because under the original order if the mother had complied with the condition of returning to London, the child’s time would have been split equally between his parents. The Court reiterated that as a child’s parents have equal status in the eyes of the law, there is no need to impose “shared residence orders” – the label adds nothing to the status of either parent. The Court also made it clear that orders which divide a child’s time 50/50 between the parents will be rare, and should only be contemplated where there is confidence that it will not work to the disadvantage of the child.

So the Court of Appeal has sensibly highlighted that equal division of a child’s time between his or her parents should not be a standard approach. Despite the presumption that a child’s welfare is best served by the involvement of both parents, who are equal in the eyes of the law, it should not be assumed that equal status amounts to equal time, and courts will continue to consider what is in the child’s best interests.

A fifty-fifty split of parenting time can seem attractive to parents who are recently separated, both of whom love their child or children very much and miss them terribly. The court is gently reminding parents here to look at potential arrangements from the child’s point of view rather than as a perceived recognition of parental status. A child’s time does not have to be divided equally for the parents to have equal legal status, or equal status in the child’s eyes. It may be a hard truth that in some cases, other arrangements may be easier for the child to tolerate and better for his or her welfare in the longer term, even if they may be psychologically more difficult for the adults involved.

If you have any questions about arrangements for children or other aspects of family law which you would like to discuss with us, please get in touch on 01223 443333 to make an appointment.

Join the discussion One Comment

  • Lloyd says:

    I am very interested in your article on equal parenting, which resonates with my situation and would like to discuss that further please.

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